Citation Nr: 0118423
Decision Date: 07/16/01 Archive Date: 07/24/01
DOCKET NO. 99-15 847 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for a headache disorder.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESSES AT HEARING ON APPEAL
Appellant and Appellant's Son
ATTORNEY FOR THE BOARD
M.A. Carsten, Associate Counsel
INTRODUCTION
The veteran had active military service from May 1950 to May
1954.
This appeal arises from a rating decision in February 1998 by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Roanoke, Virginia. The veteran filed a Notice of
Disagreement later that month and the Statement of the Case
was issued in June 1999. The appeal was perfected in July
1999. A hearing at which the veteran and his son testified
was held in April 2001 before the undersigned at the RO.
REMAND
The veteran contends that he developed headaches as a
residual of spinal anesthesia during service and that he
continues to suffer from such disability. Service connection
may be granted for a disability resulting from a disease or
injury incurred in or aggravated by service. 38 U.S.C.A.
§§1110, 1131(West 1991); 38 C.F.R. §3.303 (2000). If a
condition noted during service is not determined to be
chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection. 38 C.F.R. §3.303(b). Service connection may
also be granted for any disease diagnosed after discharge
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. §3.303(d).
Service medical records indicate the veteran suffered from
postoperative spinal headache following minor surgery under
spinal anesthesia in August 1952. Subsequent service medical
records do not document complaints of headache with the
exception of an October 1953 complaint of common cold and
headache. When he was examined in connection with his
discharge from service in May 1954, no relevant abnormalities
were noted on clinical evaluation, and there was no mention
of headache complaints.
Postservice records show that in January 1981 the veteran
sought treatment at a VA Medical Center for complaints of
headaches. Arthritis of the cervical spine was diagnosed.
On VA examination in October 1981 complaints of headache were
noted. On psychiatric evaluation, the veteran provided a
history of headaches for the past 6 to 7 years, with
associated nausea and vomiting. According to the medical
examiner, the headaches were of a migraine-like type and did
not appear to be associated with the postoperative spinal
headache.
The veteran asserts that he did not suffer from headaches
before service. He testified that the headaches started
after surgery in service, and have continued since then. He
further testified that several doctors orally stated that his
headaches are related to the spinal anesthesia.
Additionally, the veteran submitted numerous statements from
friends and relatives, including his wife, attesting that he
suffers from severe headaches and has suffered so since the
1950's.
The Board notes there was a significant change in the law
during the pendency of this appeal. On November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000).
This law eliminated the concept of a well grounded claim,
redefined the obligations of the VA with respect to the duty
to assist, and superceded the decision of the United States
Court of Appeals for Veterans Claims in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, 96-
1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which
had held that VA cannot assist in the development of a claim
that is not well grounded, and imposed on VA certain
notification requirements.
The duty to assist, as set forth in the VCAA, includes
obtaining a medical opinion if the evidence (lay or medical)
shows the presence of current disability, and indicates the
disability may be associated with service. The service
medical records clearly establish that the veteran suffered
from postoperative spinal headache during service. Likewise,
the evidence, including lay statements, reflects that
headache complaints are chronic and ongoing. Because the
veteran's testimony and the evidence in the record raise the
question as to whether or not the veteran's headaches in
service and his current headaches are related, further
development is indicated. At his April 2001 hearing, the
veteran also identified medical records that may be
outstanding.
Accordingly, this case is remanded to the RO for the
following:
1. The RO should ask the veteran to identify all
sources of treatment he received for headaches. He
should specifically identify the physician who
orally stated that the veteran's current headaches
are related to his spinal anesthesia in service.
(According to testimony at the hearing before the
undersigned, this includes "Dr. Taslow" and an
ear, nose and throat "specialist at Bristol").
The RO should obtain and associate with the claims
file, copies of clinical records from all
identified sources.
2. The RO should obtain from the Social Security
Administration (SSA) copies of all records upon
which the 1983 award of SSA disability benefits was
based.
3. The veteran should then be scheduled for a VA
neurological examination to determine the etiology
of his headaches. The veteran's claims file should
be reviewed by the examiner in conjunction with the
examination. Any indicated tests or studies should
be done. The examiner should provide an opinion,
based on the examination and review of all
evidence, as to whether it is likely, unlikely, or
at least as likely as not that any current headache
disorder is related to service or to any event
therein. A complete rationale for any opinion
offered should be set forth in the examination
report.
4. Upon completion of the above, the RO should
review the evidence, and ensure that all of the
foregoing development is completed. If any
development is incomplete, appropriate corrective
action should be taken. If any private treatment
records could not be obtained, the veteran should
be advised of this, and that he may submit such
records himself.
5. The RO must ensure that all notification and
development actions required by the VCAA are fully
carried out. In particular, the RO should ensure
that new notification requirements and development
procedures in sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102, 5103,
5103A and 5107) are fully complied with. For
further guidance on processing of this case in
light of the changes in the law, the RO should
refer to any pertinent guidance provided by the
Department, including, General Counsel precedent
opinions, as well as any binding and pertinent
court decisions that are subsequently issued.
6. The RO should then review the veteran's claim
for service connection for a headache disorder. If
it remains denied, the veteran and his
representative should be issued an appropriate
supplemental statement of the case and given the
opportunity to respond. The case should then be
returned to the Board for further review.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment by the RO. The law
requires that all claims remanded by the Board or by the
Court for additional development or other appropriate action
must be handled in an expeditious manner. See The Veterans'
Benefits Improvements Act of 1994, Pub. L. No. 103-446,
§ 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West
Supp. 2000) (Historical and Statutory Notes). In addition,
VBA's Adjudication Procedure Manual, M21-1, Part IV, directs
the ROs to provide expeditious handling of all cases that
have been remanded by the Board and the Court. See M21-1,
Part IV, paras. 8.44-8.45 and 38.02-38.03.
George R. Senyk
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b).